RAMESAN S/O KUNJURAMAN v. CHANDRIKA and OTHERS

# **IN THE HIGH COURT OF KERALA AT ERNAKULAM** ## **PRESENT** **THE HONOURABLE MR. JUSTICE SATHISH NINAN** **THURSDAY, THE 30[TH] DAY OF JUNE 2022 / 9TH ASHADHA, 1944 RSA NO. 285 OF 2014** **AGAINST THE JUDGMENT DATED 23.03.2013 IN AS 39/2005 OF SUB COURT,** ## **ATTINGAL** **JUDGMENT DATED 04.11.2004 IN OS 415/2001 OF MUNSIFF COURT, VARKALA** **------** ## **APPELLANT/RESPONDENT/PLAINTIFF:** RAMESAN S/O KUNJURAMAN, AGED 45 YEARS, RESIDING AT VILAYIL PUTHEN VEEDU, KADAMBATTUKONAM,VETTIYARA DESOM, NAVAIKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT BY ADVS. SRI.C.S.MANU SRI.S.K.PREMRAJ ## **RESPONDENTS/APPELLANTS/DEFENDANTS & SUPPLEMENTAL DEFENDANTS:** 1 CHANDRIKA, W/O SUNDARESAN,AGED 54, RESIDING AT C.S BHAVAN, KADAMBATTUKONAM, VETTIYARA DESOM, NAVAIKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT, PIN- 695603 2 SUNDARESAN DEAD ## **RSA NO. 285 OF 2014 -2-** 3 SOJU, S/O SUNDARESAN,AGED 39 YEARS, RESIDING AT C.S BHAVAN, KADAMBATTUKONAM, VETTIYARA DESOM, NAVAIKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT,PIN- 695603 4 BIJU, S/O SUNDARESAN, AGED 38 YEARS, RESIDING AT C.S BHAVAN, KADAMBATTUKONAM, VETTIYARA DESOM, NAVAIKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT,PIN- 695603 5 DEEPA, D/O SUNDARESAN, AGED 35 YEARS, RESIDING AT C.S BHAVAN, KADAMBATTUKONAM, VETTIYARA DESOM, NAVAIKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT,PIN- 695603 6 REJI, D/O SUNDARESAN, AGED 39 YEARS, RESIDING AT C.S BHAVAN, KADAMBATTUKONAM, VETTIYARA DESOM, NAVAIKULAM VILLAGE, THIRUVANANTHAPURAM DISTRICT,PIN- 695603 BY ADVS. SRI.V.FRANCIS SRI.T.S.HARIKUMAR SRI.K.JAGADEESH SRI.P.B.SAHASRANAMAN THIS REGULAR SECOND APPEAL HAVING COME UP FOR ADMISSION ON 30.06.2022, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ## **SATHISH NINAN, J.** **= = = = = = = = = = = = = = = = = = R.S.A. No.285 of 2014** **= = = = = = = = = = = = = = = = = = Dated this the 30[th] day of June, 2022** ## **J U D G M E N T** The plaintiff in a suit for declaration of title and possession, and for prohibitory injunction, is the appellant. The suit was decreed by the Trial Court. The decree was reversed in appeal. 2. The plaintiff and the first defendant are brother and sister respectively. The second defendant is the husband of the first defendant. The plaintiff claim title over the plaint schedule property as per Ext.A2 Will executed by their mother-Chellamma. The plaint schedule property has an extent of 2.83 Ares equivalent to 6.99 cents. The suit is filed alleging that the defendants, who own property on the adjoining northern side of the plaint schedule property, are attempting to trespass and reduce the plaint schedule into their possession. The defendants filed written statement disputing Ext.A2 Will and also contending that **R.S.A. No.285 of 2014** -: 2 :- Chellamma-the mother, did not have title over the property as described in the plaint schedule. 3. The plaint schedule, as was originally described, was stated to be situated in Sy. No.4255/1. Subsequently the plaint was amended by incorporating paragraph 12A, wherein it is pleaded that the correct survey number of the property is survey 3991/9A and that it was wrongly stated as survey No.4255/1 in Ext.A2 Will. 4. The trial court held Ext.A2 Will to be genuine and that the plaintiff has title over the plaint schedule property. Thus the suit was decreed as prayed for. On appeal by the defendants, the first appellate court held that Ext.A2 Will has not been proved and further that the plaintiff has not proved his title over the plaint schedule property. It is aggrieved thereby that the second appeal is preferred. **R.S.A. No.285 of 2014** -: 3 :- 5. Heard learned counsel Sri.C.S.Manu, on behalf of the appellant-plaintiff and Sri.T.S.Hari Kumar, learned counsel appearing on behalf of the respondent on the following substantial question of law:- (i) The scribe of Ext.A2 Will having acknowledged the signatures of the attesting witnesses and the testator, and in the absence of any other vitiating circumstances, did not the lower appellate court err in holding that the execution of Ext.A2 Will has not been proved in terms of Section 69 of the Indian Evidence Act. (ii) On the rival contentions of the parties, did not the courts below err in not having the plaint schedule property identified with reference to the title deeds relied on by the parties. (iii) The trial Court having accepted the identification of property under Exhibit C1 commissioner’s report and plan, when the first appellate **R.S.A. No.285 of 2014** -: 4 :- Court found that the report and plan are not acceptable, should not an opportunity be granted to the plaintiff to have proper identification of the property? 6. PW2 is the scribe to Ext.A2 Will executed by Chellamma. He has deposed that neither of the witnesses to Ext.A2 are alive. The same is not challenged in cross-examination. That the witnesses to Ext.A2 Will are not alive, is not disputed. Under such circumstances, when both the attesting witnesses to the Will are no more, proof of the Will is to be in terms of Section 69 of the Evidence Act. Section 69 of the Evidence Act reads thus:- _“_ _**69. Proof where no attesting witness found.-** If no such attesting witness can be found, or if the document purports to have been executed in the United Kingdom, it must be proved that the attestation of one attesting witness at least is in his handwriting, and that the signature of the person executing the document is in the handwriting of that person.”_ **R.S.A. No.285 of 2014** -: 5 :- In terms of the Section, two aspects needs to be proved -(1) the signature of at least one attesting witnesses; and (2) the signature of the executant. In _**Raveendran v. Gopi (2015 (3) KLT 710)**_ , this Court has held as hereunder:- _“19. ..... S.69 imposes a twin fold duty on the propounder. It provides that if no such attesting witness can be found, it must be proved that attestation of one attesting witness at least is in his handwriting and also that the signature of the person executing the document is in the handwriting of that person. Hence, to rely on a Will propounded in a case covered by S.69 the propounder should prove i) that the attestation is in the handwriting of the attesting witness and ii) that the document was signed by the executant. Both the limbs will have to be cumulatively proved by the propounder. Evidently, the section demands proof of execution in addition to attestation and does not permit execution to be inferred from proof of attestation. However, S.69 presumes that once the handwriting of attesting witness is proved he has witnessed the execution of the document. …..”_ _xxxxx xxxxx xxxxx xxxxx xxxxx_ _“23. However, when a witness is called to prove a Will under S.69, it is not warranted that he should specifically say that he had seen the executant affixing his signature, but it will_ **R.S.A. No.285 of 2014** -: 6 :- _be sufficient if it is proved that the signature was in the handwriting of the person affixing it. This seems to be the essential difference in the quality and nature of evidence required under S.68 and that under S.69. In the case of former, the genuineness of a document required by law to be attested is proved by adducing evidence of due attestation, whereas in the case of latter it is genuineness of the document which is to be established.”_ As PW2, the scribe has identified the signature of the testatrix in Ext.A2 Will. He has further identified the signatures of the witnesses to Ext.A2. He has also identified his signature in Ext.A2 and also spoken to the fact that Ext.A2 was written in his handwriting. He has also deposed that at the time of execution of Ext.A2 Will Chellamma, the testator was of good health. Ext.A2 is a registered Will. The mere fact that he is a distant relative of the plaintiff's wife by alone is not a ground to reject his evidence. I am unable to agree with the appellate Court in having discarded his evidence solely on that ground. But for the suggestion of being a **R.S.A. No.285 of 2014** -: 7 :- relative, absolutely no circumstance is brought out in his cross-examination to discredit him. Under the above circumstances, I am unable to concur with the finding of the first appellate court that, the evidence of PW2 is not sufficient to prove Ext.A2 Will. I find that there is sufficient proof of Ext.A2 Will in terms of the mandate under Section 69 of the Evidence Act and that the Will has been proved. Substantial question No.1 is thus answered in favour of the appellants. 7. The suit property is described in the plaint schedule as 6.99 cents with building bearing No.NP VII/1839 in Sy. No.4255/1. The Advocate Commissioner with the help of a Surveyor measured the property and identified that the plaint schedule with the building thereon, is situated in Sy. 3991/9A. Thereupon the plaintiff amended the plaint by adding paragraph 12(a) to the plaint to the effect that, the survey number of the property as stated in Ext.A2 Will as Sy. No.4255/1, **R.S.A. No.285 of 2014** -: 8 :- is a mistake, and that the correct Sy. No. is 3991/9A. There has been no consequential amendment in the plaint schedule. 8. Under Ext.C1 commissioner’s report, the plaint schedule property was identified to have an extent of 10.35 cents with the building bearing No.NP VII 1839. It is identified to be situated on the immediate south of the defendant's property which is found to have an extent of 53 cents. The Commissioner was examined as CW1. He has said that the property was identified with reference to the boundaries and that the boundaries of the plaint schedule and the boundaries in Ext.A2 Will tallies. The defendants have a case that, the attempt of the plaintiff is to grab a portion of the 90 cents of property in Sy. No.3991/9A which belonged to the motherChellamma as per Ext.B2 sale deed. As per Ext.B2 sale deed Chellamma had obtained 90 cents of property in Sy. No.3991/9A. From out of the said property, an extent of **R.S.A. No.285 of 2014** -: 9 :- 40 cents, leaving 30 cents on the north, was gifted by her to the first defendant as per Ext.B1 document. Under the very same document, an extent of 10 cents lying to the south of the said 40 cents was conveyed by sale to the second defendant. Thus under Exts.B1, from out of the 90 cents covered under Ext.B2, a total extent of 50 cents was conveyed by Chellamma to defendants 1 and 2. Going by the description of the properties in Ext.B1 document as noted above, an extent of 10 cents on the southern portion of the entire 90 cents remained with Chellamma. The defendants allege that, the attempt of the plaintiff is to grab the said property under cover of Ext.A2 Will. 9. Initially the trend of arguments of the appellant-plaintiff was to the effect that Ext.A2 Will relates to the said 10 cents of property. However, as pointed out by the learned counsel for the respondents, the claim over any portion of the property covered under **R.S.A. No.285 of 2014** -: 10 :- Ext.B2 sale deed in favour of Chellamma could not be sustained under Ext.A2 Will for reasons more than one; (i) In Ext.A2 Will, the title is traced not to Ext.B2 sale deed in favour of Chellamma but to a land assignment from the Tahsildar (ii) Thandapper number of the property covered under Ext.A2 is 13431 whereas that of the property covered under Ext.B1 Sale deed is 2303 (iii) Going by the recitals in Ext.B1 conveyance in favour of the defendants 1 and 2, as noticed above, the remaining extent available on the southern portion, out of the total extent of 90 cents covered under Ext.B2 is only 10 cents. However, in Ext.A2 Will the property is described as having an extent of 7 cents out of a larger extent of 14 cents (iv) PW2, the scribe has spoken to that he prepared Ext.A2 Will by referring to the land assignment “pattayam” that was brought to him. (5) Survey number covered under Ext.B2 sale deed is survey No.3991/9A where as Survey number mentioned in Ext.A2 **R.S.A. No.285 of 2014** -: 11 :- Will is survey No.4255/1. Even accepting the plaintiff's case that the survey number mentioned in Ext.A2 Will could be erroneous and that the correct survey number is 3991/9A, on the face of the other circumstances as noticed above, it can only be found that the plaintiff cannot, on the strength of Ext.A2 Will, claim title over any portion of the property covered under Ext.B2 Sale Deed. At the same time, the defendants do not have a case that they have obtained the remaining 10 cents of property covered under Ext.B2 which lies on the southern side of the 50 cents of property covered under Ext.B1. The Commissioner, with the help of Surveyor has identified that, the property in survey number 4255/1 is situated farther to the west of the property belonging to the plaintiff and defendants. Admittedly there was an earlier suit as OS 163/95 filed by Chellamma against the defendants herein, for fixation of boundary with reference to the property covered under Ext.B1, with the **R.S.A. No.285 of 2014** -: 12 :- remaining property in Ext.B2. Ext.A6 is the decree in the said suit, with the survey plan attached thereto, identifying the properties. In this suit, the property has not been identified and located on the basis of Exts.A2, B2 and B1 documents. Suffice to notice that there is lack of proper identification of the properties. Though the first appellate Court found that the identification by the Commissioner is not proper, no opportunity was granted to obtain a fresh plan and report. It would have been proper to grant an opportunity especially when the trial Court had accepted the identification under Ext.C1. Substantial questions of law (2) and (3) are answered thus. 10. Admittedly there is another suit pending between the parties, as OS 214/2006 before the Munsiff's Court, Varkala. That suit is filed by the defendants/ respondents herein against the plaintiffs/appellants herein, for declaration of title and recovery of **R.S.A. No.285 of 2014** -: 13 :- possession of the building in the plaint schedule property in this suit. The said suit is pending. It is submitted by the learned counsel on either sides that the said suit is stayed under Section 10 of CPC. The present suit being one for declaration of title, and having found that the suit property have not been correctly identified and located with reference to the relevant documents, it is only appropriate that a fresh identification be done by the trial court with reference to the relevant documents including Exts.A2, B1 and B2 and Ext.A6 documents. It shall be open for the court to direct identification of the property with reference to any further documents, if any, which the court may deem appropriate. In order to enable the same, the matter is to be remitted back to the trial court. In such event, it is only appropriate that this suit is tried and disposed of along with O.S.214 of 2006 which is pending on the files of the same Court. **R.S.A. No.285 of 2014** -: 14 :- 11. Accordingly, the judgment and decree of the court below are set aside. Holding Ext.A1 Will to be proved, the suit is remanded back to the trial court for fresh identification of the plaint schedule property in the light of the observations made above. The suit will be tried jointly along with OS 214/2006 pending on the files of that court. Parties shall be afforded opportunity to adduce evidence on the issue of title and identity of title of the plaint schedule property. Parties to appear before the Munsiff's Court, Varkala, on 18.07.2022. Let every endeavour be made to have the suit tried and disposed of within a period of eight months from the date of appearance of parties. Sd/- **SATHISH NINAN JUDGE** kns/- //True Copy// P.S. to Judge